Consumer Law Flashcards
a waiver is void unless…
- in writing
- signed
- consumer not in disparate bargaining position and represented by an attorney
proper party plaintiff for DTPA claim
consumer: individual, partnership, corporation who seeks or acquires by purchase or lease, any good or services
consumer
entity who seeks or acquires by purchase or lease goods or services
application of DTPA
liberally construed to protect consumers and generally may not be waived
seek
any purchaser or anyone with good faith intention to purchase is consumer… no requirement that a transaction be consummated
acquire
any purchaser acquires as does any intended ben
intended v. incidental bens
- incidental does NOT acquire
purchase or lease
to be a consumer under DTPA entity must do more than merely seek or acquire goods or services… they must be sought or acquired by purchase or lease
truly free services
NOT subject to DTPA
goods
includes real estate BUT excludes money or intangibles
services
includes services BUT excludes pure loans
loans in DTPA
merely lending money is NOT subject to DTPA BUT if from the consumer’s perspective the loan is an essential part of the transaction, it is subject to the act
business consumer exemption
assets of $25m or +, or one that is owned or controlled by a corp with assets of $25m or + is NOT a consumer for purposes of the DTPA
- a ∆ has the burden to prove the business consumer exception as an affirmative defense
professional services exemption
nothing in DTPA shall apply to a claim for damages based on the rendering of professional service, the essence of which is the providing of advice, judgment, or opinion
exceptions to the professional services exemption
- express misrepresentation of a material fact that cannot be characterized as advice or opinion
- failure to disclose information
- unconscionable action or course of action
- breach of express warranty
personal injury claims
all damages arising out of PI claims are recoverable under 17.50h for a violation of a tie-in statute as actual damages
large transactions - written Ks
DTPA does NOT apply to claim arising out of a written and signed K if the K relates to a transaction involving consideration by the consumer of more than $100k and consumer is represented by attorney
transactions over $500k
does not require written K, just needs to be over $500k and DTPA will not apply
in connection with requirement (remote parties)
remote parties are ∆s that are not immediate parties (most cases this is the manufacturer)
claims under DTPA
- use or employment by any person of a false, misleading, or deceptive act that is on the laundry list AND relied on by the consumer to the consumer’s detriment
- breach of an express or implied warranty
- unconscionable action by any person OR
- use or employment by any person of an act in violation of Chapter 541 Insurance Code
cumulative claims under DTPA
may have multiple claims but only a single recovery of damages
to have a claim under DTPA laundry list you need…
- reliance required
- prohibited practice
- no privity/knowledge/intent
- general misrepresentation (actionable unless mere puffing or opinion)
- parol evidence rule inapplicable
failure to disclose elements
- ∆ knew information regarding goods or services
- information was not disclosed
- intent to induce the consumer to enter into the transaction AND
- consumer would not have entered into transaction had the information been disclosed
unconscionability under DTPA
- act which to a consumer’s detriment takes advantage of the lack of knowledge of the consumer (no need to show culpable mental state if ∆ takes advantage of consumer to unconscionable degree) to a grossly unfair degree
- separate and cumulative claim determined at time of transaction
cumulative remedies under DTPA
if there are different acts or practices resulting in different damages, cumulative recovery is permissible
- remedies provided by the DTPA are in addition to any other procedures or remedies provided for in any other law
when the ∆ acted knowingly, the TX Insurance Code permits recovery of…
treble actual damages
actual damages
all economic losses, pain and suffering, mental anguish, loss of consortium, disfigurement, physical impairment and loss of companionship and society
P has proven the ∆ violated the TX Insurance Code. Under the code the P is entitled to…
actual damages, attorneys’ fees and court costs
actionable unfair settlement practices under TX Insurance Code
- refusing to pay a claim without reasonable investigation
- failing to provide promptly a reasonable explanation for the denial of a claim or an offer of a compromise settlement of a claim
- misrepresenting a material fact or policy provision relating to the coverage at issue to a claimant
provisions of the TX Insurance Code apply to…
any person engaged in the business of insurance (individual or legal entity)
TCDA provides for fee shifting for…
both prevailing ∆s (under certain circumstances) and prevailing Ps
under TCDA a consumer may sue for
- injunctive relief to prevent or restrain a violation of the TDCA OR
- actual damages (definition under DTPA)
informing a consumer that she may be arrested after proper court proceedings if she has violated a criminal statute is…
permitted under TDCA
prohibited conduct under the TDCA
- threats or coercion
- harassment and abuse
- unfair or unconscionable acts
- fraudulent, deceptive or misleading represenations
the scope of conduct prohibited by the TDCA in connection with collection debt includes…
only the conduct listed specifically in the TDCA (exclusive list)
TDCA uses the term ______ to describe the type of obligations governed by the act
consumer
purposes of the TDCA
- regulate 3rd party debt collectors and credit agencies
- protect consumers from abusive debt collection practices
- require 3rd party debt collectors post a surety bond prior to collecting debt
consumer who prevails on her TDCA claim shall recover her attorneys’ fees…
even when there is no showing the ∆ acted knowingly or intentionally
under DTPA a prevailing consumer is entitled to
economic damages, damages for mental anguish, equitable remedies and attorney fees (reasonable and necessary)
when the ∆ acted intentionally, DTPA provides for the recovery of
both treble economic damages and treble damages for mental anguish
when teh ∆ acted knowingly, DTPA provides for the recovery of
treble economic damages only
besides economic and mental anguish damages under DTPA a P may recover additional damages
only if ∆ acted intentionally or knowingly
definition of knowingly under DTPA
actual awareness at the time of the act or practice of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim
transaction or set of related transactions valued in excess of ____ is exempt from the DTPA
$500k
businesses that meet or exceed the threshold of ___ in assets, or that are owned by an entity whose value meets or exceeds ___ are exempt from the scope of the DTPA
$25m
who may a homebuyer sue under DTPA in connection with sale of the house
- seller
- seller’s real estate agent
- buyer’s real estate agent
claims under the DTPA laundry list require proof of…
reliance
required elements to prevail on breach of warranty claim under DTPA
- warranty exists
- scope of the warranty
- warranty has not been disclaimed or modified
diclaimers, modifications or limitations of warranties are all valid and enforceable in a claim under the DTPA if…
they are valid and enforceable outside of the DTPA
causation standard for the recovering of damages under DTPA…
producing cause - substantial factor which brings about the injury and without which the injury would not have occurred
DTPA permits the recovery of economic damages such as…
costs of repair and replacement
by knowingly and voluntarily signing a K containing an “as is” provision the consumer may have…
negated the producing cause element of his claim and may not recover any damages
when does the DTPA permit recovery for mental anguish damages
only when the ∆ acted either knowingly or intentionally
